SAIDI ABDALLAH v REPUBLIC 1994 TLR 204 (CA)

 

SAIDI ABDALLAH v REPUBLIC 1994 TLR 204 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga AgCJ, Omar JJA and Lubuva JJA

CRIMINAL APPEAL NO. 130 OF 1994 B

7 October, 1994

(From the conviction and sentence of the High Court of Tanzania at Mtwara,

Mkwawa, J)

Flynote

C Criminal Law - Murder - Defence of Provocation - Whether talking in riddles is

provocative enough

-Headnote

This was an appeal against conviction for murder by the High Court. The accused

argued that he should have been convicted of manslaughter as he killed because he

suspected that the deceased and his colleagues had hatched a plan to kill him. D

Held:

(i) The defence of provocation is not available in this case where the

appellant was clearly vengeful from the way he persuaded his victim to follow him to

the forest where he killed him; E

(ii) People talking in riddles is not provocative enough to lead the

appellant to choose one unsuspecting person and lure him to his death.

Case Information

Appeal dismissed.

F No case referred.

Mkongwa, for the appellant.

Matupa, for the respondent.

[zJDz]Judgment

G Omar, JA, delivered the following considered judgment of the Court:

The appellant Saidi Abdallah was charged with the murder of his fellow worker Saidi

Hassan Mnanila and was convicted. He is now appealing.

H The prosecution led evidence to the effect that on 16 April 1991 at Pungutini

Village in Kilwa District the appellant and the deceased took their meal together in

the house of PW1 where they were employed as shamba boys. PW2, the brother of

PW1, was present too during meal time. Both PW1 and PW2 heard the appellant

entreating the deceased to go with him to the shamba to collect building poles. At

first deceased refused but the appellant insisted, I

1994 TLR p205

OMAR JA

so the deceased turned to PW1 and PW1 permitted the deceased to go. The two A

then departed for the countryside; the appellant borrowed a bill-hook from PW1 and

took it along. Shortly afterwards a loud sound was heard by PW1 and PW3 and the

cries from the deceased screaming that Saidi was killing him.

PW4 Sikujua d/o Pengere who was passing by at the time, saw the appellant B

running very fast to the bush and wielding a bill-hook, and a distance ahead she saw

the deceased lying on the ground. He was already dead.

In the cautioned statement before ASP Matho in the CID Office at Kilwa, Masoko the

appellant confessed to killing the deceased by cutting his neck on the right side C

with a bill-hook. But he did so because he suspected that the deceased and his

colleagues had hatched a plan to kill him.

In his defence the appellant agreed that he and deceased went out together that

fateful day but on the way the deceased tried to throw him to the ground but he D

(the appellant) managed to escape from him and ran away. He was not carrying a billhook

and PW4 who said she saw him running armed with a bill-hook was lying. The

appellant then said that he did not know who killed the deceased.

Mr Mkongwa, the learned counsel for the appellant, submitted that the learned trial

E judge erred in law and in fact by finding the appellant guilty of murder instead of

manslaughter. He added that the appellant was acting in self-defence following what

he perceived was a serious threat to his life, he (the appellant) did not deny attacking

the deceased. F

Mr Matupa, the learned State Attorney, on the other hand supported the conviction

of murder and he added that it was well founded because it is clear that he was

vengeful from the way he persuaded his victim to follow him to the forest ostensibly

to help him (the appellant) cut building poles but actually to afford him (the

appellant) the opportunity to kill, which he did at the first available opportunity. G

We agree with the counsel for the Republic that the defence of provocation is not

available to him. If the appellant perceived any threat to his life he should have

quietly disappeared from his place of work instead of doing what he did. If people H

were talking in riddles which made him understand that they were saying that they

had him in their grip then that conception is not provocation enough to lead him to

choose one unsuspecting person and lure him to his death.

We find on this account that the appeal is devoid of merit and so dismiss it in its

entirety. I

1994 TLR p206

A